State v. Cummings

977 So. 2d 135, 2008 WL 185616
CourtLouisiana Court of Appeal
DecidedJanuary 22, 2008
Docket07-KA-686
StatusPublished
Cited by3 cases

This text of 977 So. 2d 135 (State v. Cummings) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cummings, 977 So. 2d 135, 2008 WL 185616 (La. Ct. App. 2008).

Opinion

977 So.2d 135 (2008)

STATE of Louisiana
v.
Gregory C. CUMMINGS.

No. 07-KA-686.

Court of Appeal of Louisiana, Fifth Circuit.

January 22, 2008.

*137 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.

Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.

On October 20, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Gregory C. Cummings, with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). He pled not guilty at arraignment. Defendant filed several pre-trial motions, including a motion to suppress evidence. After a hearing on March 8, 2007, the trial court denied defendant's motion to suppress. After a one-day trial on April 24, 2007, the jury found defendant guilty as charged. He filed a motion for new trial, which was denied by the trial court. The trial court sentenced defendant to 15 years at hard labor with the first two years to be served without benefit of parole, probation or suspension of sentence. Defendant appeals.

FACTS

At trial, Deputy Robert Miles and Deputy Justin Brown of the Jefferson Parish *138 Sheriff's Office testified that they were on patrol in Jefferson Parish on October 4, 2006. At approximately 10:30 p.m., they were stopped in the parking lot of a Baker's Dozen donut shop when they saw defendant and an unidentified man come from around the corner of the shop. According to Deputy Miles, the business appeared abandoned and was in a high crime area. Defendant threw a cup on the ground, which Deputy Miles described as littering. Deputy Brown also saw one of the men throw down a cup. The officers ordered the men to pick up the cup.

Deputy Miles and Deputy Brown decided to question the two men about the littering violation and to investigate what they were doing behind the closed or abandoned business late at night. For their safety, the officers asked the two men to step over to their police car. Deputy Miles began to question the men about their activities, and he asked them for identification. At that time, defendant acted as if he was choking or coughing. According to Deputy Brown, defendant was doubled over, as if he was ill. Deputy Miles asked defendant if he was choking. When Deputy Brown moved closer to defendant, he pushed Deputy Brown and began to run.[1]

Deputy Brown chased defendant on foot, never losing sight of him. Deputy Miles pursued defendant in his vehicle. During the chase, Deputy Brown observed defendant reach into his pocket with his right hand, pull out two plastic bags, and discard them. The bags landed in the street. As Deputy Miles was exiting his vehicle, he also observed defendant stick his hand into his right pocket and throw two off-white colored objects that struck a parked vehicle and landed in the street. While pursuing defendant, both deputies lost sight of the other man. Deputy Miles testified that the other man was not his primary concern because he had not committed a battery on a police officer or any other crime in his presence.

Defendant was subsequently apprehended and placed under arrest. Deputy Miles retrieved the objects defendant had thrown, which he described as two individual packages containing rocks of crack cocaine. Deputy Miles testified that the packaging was consistent with the sale of narcotics. When asked if he found proceeds from the sale of narcotics on defendant, Deputy Miles replied, "We found some cash."

Thomas Angelica, a forensic scientist for the Jefferson Parish Sheriff's Office, testified that the off-white material in the two plastic bags tested positive for cocaine. The net weight of the cocaine was approximately 11.13 grams.

Lieutenant Bruce Harrison of the Jefferson Parish Sheriff's Office, an expert in the use, packaging, distribution, and value of controlled dangerous substances, testified that the drugs in this case were in very large chunks and could be cut into smaller pieces for resale. The weight of the drugs, based on his visual inspection, was consistent with possession with intent to distribute. He stated that the value of the drugs seized would be approximately $400 to $500, which was not consistent with personal use. Rather, the value was consistent with a business operation. This amount of drugs, after being cut into smaller pieces, could be sold on the street for between $1000 and $2000, depending on the number of pieces.

Defendant testified that on the night in question, he was coming from his house, which is three houses away from Baker's Dozen. When he was asked by the police *139 if he was going to leave the cup on the ground, he told them that the cup did not belong to him but he would pick it up. He testified that when he brought the cup to the police officer, the officer told him that he looked like a drug dealer and told him to place his hands on the car. Defendant stated that he complied. Robert, the man walking with him that night, also placed his hands on the car. The officers began to question defendant about drugs, but defendant told them that he did not know about any drugs or have drugs because he had only been released from prison for six weeks. He told the officers that he had just finished serving a sixteen-month sentence.[2] Defendant claimed that he was not in possession of the drugs recovered by the police, but it was possible that the other man he was with threw down the drugs. He also claimed that he did not push one of the deputies.

DISCUSSION

In his first assignment of error, defendant asserts that the trial court committed manifest error by accepting the jury's guilty verdict despite the fact that the record does not contain sufficient evidence to establish that defendant — not the unidentified male with defendant — was in possession of illegal drugs. However, defendant does not brief the issue of sufficiency of the evidence on appeal. Rather, in his brief, he argues that the trial court erred in denying his motion to suppress the evidence.

Assignments of error that are neither briefed nor argued are considered abandoned on appeal. Uniform Rules Courts of Appeal, Rule 2-12.4. Since defendant has failed to brief the assigned sufficiency errors, they are abandoned and will not be addressed. However, we will address defendant's arguments regarding the motion to suppress evidence, which was briefed on appeal.

Defendant argues that the trial court erred in denying his motion to suppress evidence, because the drugs discovered by the officers were obtained as the result of an illegal arrest. He contends that the police did not observe him engaging in any illegal activity. Defendant claims that the drugs either belonged to the other man or the drugs were just lying on the ground in a drug infested high crime section of the city. The State responds that the officers had reasonable suspicion to stop defendant because they observed him littering and walking from behind a closed or abandoned building at night in a high drug trafficking area. The State claims the officers' experience with drug activity occurring in this manner gave them reasonable suspicion to justify the investigatory stop.

The Fourth Amendment to the United States Constitution and the Louisiana Constitution Article 1 § 5 protect individuals from unreasonable searches and seizures.

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Related

State v. Chairs
106 So. 3d 1232 (Louisiana Court of Appeal, 2012)
State v. CURINGTON
51 So. 3d 764 (Louisiana Court of Appeal, 2010)
State v. Neely
3 So. 3d 532 (Louisiana Court of Appeal, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
977 So. 2d 135, 2008 WL 185616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cummings-lactapp-2008.